INTRODUCTION
The Supreme Court of Canada (“the SCC”) has granted leave to appeal English Montreal School Board, et al. v. Attorney General of Quebec, et al., in which the English Montreal School Board and others are challenging Quebec Bill 21, Act respecting the laicity of the State (“Bill 21”). In enacting Bill 21, the Quebec government invoked 33 of the Canadian Charter of Rights and Freedoms (“the Charter”) (“the notwithstanding clause” or “the override”), as well as the section 52 override in the province’s human rights statute, the Charter of Human Rights and Freedoms. Here I am concerned only with section 33 of the Charter. Although there are many parties, as well as intervenors, in the case (see here), the names of the decisions of the lower courts are Organisation mondiale sikhe du Canada c. Procureur général du Québec (QCCA)(“CA decision”) and Hak v. Attorney General of Quebe0c (QCCS) (“trial decision”). (My references are to the English translation of the CA decision by the court of and to the Google translation of the trial decision.)
Litigants in the four actions challenging Bill 21 at trial and on appeal did so based on myriad grounds, including sections 2, 15 and 28 of the Charter, raising issues about section 33. The SCC now has the opportunity to review the place of section 33 in the constitutional architecture and the courts’ role with respect to it. In this post, I consider several questions arising from section 33 within a framework that best reflects the reason for its inclusion in the Charter and its impact on the inherent purpose of the Charter.
I have previously written Slaw posts about Bill 21 and decisions arising from challenges to it: “Challenging Bill 21: The Decision on Section 33 of the Charter (Among Other Things)” (April 27, 2021) and “Religion and the Law: “Respect” or Denial?” (May 21, 2019). I also wrote about section 33 in the context of Ontario’s Keeping Students in Class Act, 2022 in “The Notwithstanding Clause: Let’s Be Real!” (November 2, 2022). Many years ago, I expressed my opinion about section 33 in an article in the UNB Law Journal (Vol. 49, 169), entitled “Section 33 of the Charter: What’s the Problem, Anyway? (Or, Why A Feminist Thinks Section 33 Does Matter)”. There I said, “Whatever merits it might have, dressed up as a means to represent the will of the people against the follies of unelected courts, recourse to section 33 may actually legitimate the continuation of prejudice.” (p.169)
I begin by placing section 33 in context in order to frame my discussion.
SECTION 33 IN CONTEXT
Despite its apparent clarity and simplicity, section 33 of the Charter is in a sense an internal disruptor with potential to neutralize (up to a point) the very purpose of the Charter, the constitutionalization of rights and freedoms. It reads as follows:
33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
Parliament and provincial and (by virtue of section 30 of the Charter) territorial legislatures have the authority to apply section 33 to an entire statute or to a particular provision or, indeed, to more than one statute at once. Applying “only” to sections 2 and 7 to 15, it must be remembered that the section 2 freedoms are termed “fundamental”, the legal rights have a lengthy history and section 15 is meant to advance substantive equality. The Charter jurisprudence has sometimes advanced these rights and sometimes not; it can also, through osmosis, have an effect on norms and practices in everyday life. The more the affected Charter provisions are made immune from judicial review, the more static developments in these areas become.
In recognition that the invocation of section 33 can have a significant impact on the enjoyment of rights and freedoms, it has an internal limitation, a maximum life of five years, although the enacting legislature may specify a shorter time and government can make another declaration. The government invoking it will have to face an election within that period, giving voters an opportunity to express displeasure at the declaration by voting against the government. (In reality, the use of section 33 has not been an election issue subsequent to its invocation.) A government abusing the override may also confront a public outcry forcing it to back down (as in Ontario in relation to the Keeping Children in Class Act, 2022, when the government tried to control strike action in opposition to the Act by invoking section 33).
Section 33 appears in the Charter as a compromise between some provinces, concerned about the loss of parliamentary sovereignty and fearful that the courts might strike down efforts to legislate in what they perceived to be the public interest, and a federal government that wanted to enact the Charter: in short, without section 33, there might well have not been a Charter at all. Thus section 33 imports some degree of legislative sovereignty into a document that otherwise marks Canada has having moved from parliament sovereignty to a system of constitutional supremacy. The result is a hybrid system in which the legislatures are subject to judicial oversight but in which the legislatures also enjoy, within limits, the final word.
Concerns about an overenthusiastic resort to section 33 were assuaged by “assurances” that it would be used only “rarely” and in “non-controversial” cases. That Quebec’s use of section 33 to apply to all statutes seemed to gainsay this was explained by the Quebec government’s invoking the override as a political act because the province had not signed the Constitution Act, 1982. It was otherwise used sparingly at the beginning, but more recently, some governments, at least have felt less restraint in insulating legislation.
The Library of Parliament Research Publication “The Notwithstanding Clause of the Charter” provides a thorough consideration of section 33, which discusses how controversial section 33 is and when it has been used, including the increase since 2018. On the original intention, also see former Supreme Court Justice Michel Bastarache, “Section 33 and the Relationship Between Legislatures and Courts”) and his comment in Thomson Newspapers that section 33 is “rarely invoked”, something that was true in 1998 (at para. 79). As things stand, there is little except public resistance that prevents normalization of the invocation of section 33.
Reflecting the original expectation, as Blanchard JCS commented in the trial decision on Bill 21, “in a society concerned with respecting the fundamental rights it grants to its members, the use of the notwithstanding clause should be done in a parsimonious and circumspect manner.” (Trial decision, para. 754)
The current judicial treatment of section 33 flows from the 1988 decision in Ford, in which the SCC effectively took a “hands-off” approach to section 33 as employed by the Quebec government in its omnibus bill reflecting its non-signing of the Constitution Act, 1982. The omnibus bill provided that each existing statute would be reenacted with an override in the following form: “This Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of the Constitution Act, 1982 ….”
The SCC in Ford made rulings about section 33 that remain in force today: it held both the omnibus bill and the lean format for the override were valid. (The SCC also held that the override could not be applied retrospectively.)
The omnibus issue has never arisen again. However, there has been debate about the use of the override and the standard wording of a declaration. The Quebec Court of Appeal in another case had held that “the standard override provision in Quebec legislation, which declared that a statute shall operate notwithstanding the provisions of s. 2 and ss. 7 to 15 of the Canadian Charter of Rights and Freedoms, was ultra vires and null as not being in conformity with s. 33 of the Canadian Charter” because it did not specify the particular legislative provisions it was intended to override (quoting the SCC in Ford at paragraph 19 summarizing the Court of Appeal). The argument is that it is important that the members of the public understand what is at stake. (Ford0, paras. 30 and 32). This issue has arisen again in the Bill 21 case.
Section 33 has been conceptualized as intrinsic to the constitutional order, making a contribution to democracy. It is considered as part of the “dialogue” between the courts and the legislatures, in which the two entities are “made somewhat accountable to the other” (as is section 1 of the Charter): “The work of the legislature is reviewed by the courts and the work of the court in its decisions can be reacted to by the legislature in the passing of new legislation (or even overarching laws under s. 33 of the Charter)”, as Cory and Iacobucci JJ. explained in Vriend, going on to say, “This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process, not denying it.” (Vriend, para.32)
As the Quebec Court of Appeal in its Bill 21 decision summarized,
since the ruling in Ford, the Supreme Court’s jurisprudence has been clear, and the terminology it uses, in both English and French, is unambiguous: the use of s. 33 of the Canadian Charter has the effect of protecting the statute in question from the application of any of ss. 2 and 7 to 15 of the Canadian Charter, such that it operates without regard to these provisions, sheltered from the effects that would otherwise result from s. 52(1) of the CA 1982. (para. 328; emphasis added)
This is, I suggest, an ironic use of the term “protect”, suggesting that the rights and freedoms guaranteed by the Charter are attacking the legislature’s right to infringe them without justification.
After Ford, there has been almost no judicial consideration of section 33 and certainly not any consideration that seriously questioned the parameters laid down in that case. The criteria for invoking section 33, as described by the Quebec Court of Appeal in the Bill 21 case, are that it can be “be declared and implemented without any particular justification and subject only to fairly light formal requirements”. Put another way, Parliament and provincial and territorial legislatures have a more or less free rein when it comes to overriding Charter rights and freedoms. Accordingly, the Bill 21 case provides the first significant opportunity for a thorough exploration of section 33 in light of its current use.
ISSUES THE SCC MIGHT ADDRESS
Among the issues the SCC might consider, some of which are related, are the following:
1) On the matter of “form”, are an omnibus bill and the spare form employed in the now standard override consistent with the hybrid nature and purpose of the Charter?
2) On the timing of the invocation, when can a government invoke section 33: only when the legislation is enacted; only after judicial consideration has resulted in its being declared unconstitutional; or as it pleases? And the related question of when a court has the opportunity or is requested to do so, should a court determine whether the statutory provisions overridden by section 33 are constitutional?
3) What is the relationship between sections 33 and 1, between sections 33 and 24(1) and between sections 33 and section 28 of the Charter (section 28 was a major issue in the Bill 21 case)?
- The Form of Section 33
From one perspective, section 33 is an exemption to the Charter protection of rights and therefore should not be too “easy” to invoke. After all, once invoked, the particular rights to which it applies have been suspended for the specified period (or, put more strongly, no longer exist, as Blanchard JCS in the Bill 21 trial decision says). Governments, therefore, should have to think carefully about invoking the notwithstanding clause and be clear about what it really means to do.
On this view, an omnibus bill would not pass muster. It is too easy and even “flippant” to simply say “we’re overriding all the rights we can in all our statutes”. Quebec’s political motive aside, this surely is not in keeping with the purpose of the Charter. However, as I already mentioned, no government has employed an omnibus bill since Quebec. Yet it is not impossible that a future government would use this approach; for example, a government that passed an omnibus bill to amend the criminal law might invoke section 33 in relation to all the statutes affected by the bill, as well as in relation to all existing criminal law statutes.
Since the omnibus approach was not at issue in the Bill 21 case, it is unlikely that even if a party raises it, the SCC would want to reopen it. The question of the wording of the declaration is not as clear cut, however.
The SCC in Ford had held that the only requirements for section 33 relate to form and requiring a link to the words of the Charter would come close to being a substantive requirement:
Section 33 lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case. The requirement of an apparent link or relationship between the overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review. It appears to require that the legislature identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights or freedoms. That would seem to require a prima facie justification of the decision to exercise the override authority rather than merely a certain formal expression of it. (Ford, para. 33)
Furthermore, legislatures, the SCC explained in Ford, may not know which Charter provisions might apply to the legislation. It is sufficient to refer merely to the number of the provision (section, subsection or paragraph of the Charter), unless only a part of a legislative provision is overridden, in which case it may be necessary to be more precise (Ford, para. 33).
Justice Blanchard made a strong argument in favour of a richer form of override. Although acknowledging the Ford pronouncement that the validity of an invocation of section 33 relies on form only, he nevertheless expressed concern with how it has been used. As he notes, Quebec (in that case, but we can say in Canada generally, theoretically at least) is “a society concerned with respecting the fundamental rights it grants to its members”, while in this case, “the Court is … challenged by the scope of the exercise and the indifference it displays with regard to certain rights and freedoms affected”. Accordingly, “since it is a question of neutralising fundamental rights and freedoms, simple respect for them should argue in favour of a more targeted use of this power which, after all, must remain exceptional.” (Trial decision, paras. 754-758)
There is something to be said for this. It forces the legislature to consider carefully the impact of the override rather than its being what has become a response to a court’s striking down legislation or even more concerning, avoiding the possibility of a finding of invalidity with a pro forma declaration at the outset. And it provides the public more information with which to assess the government’s action.
The Quebec Court of Appeal found the trial judge had accepted the SCC’s conclusion that the requirement of wording is one of form only. And it agreed, emphasizing Ford’s acceptance of the current wording (CA decision, paras. 244 and 254).
The wording of the override has become rote; it may contribute to the sense that the actual invocation by governments has become rote. The standard declaration takes a scattergun approach: it ensures whatever provisions of the statute that might contravene sections 2 or 7-15 of the Charter (any or all of them) will not be subject to them.
Although reconsidering whether the override need meet only a requirement of form would help address the question of the ease with which governments can invoke section 33 and would permit the public a better understanding of what the override involves, it is unlikely the SCC will reopen this issue; imposing a fuller wording could result in the courts reviewing override clauses for adequacy (even though all that is asked is to specify the wording of the overridden Charter provision). It is likely to conclude, should it reopen the issue at all, that it is not worth the candle and that the public is capable to finding out what the numbered provisions refer to in words.
- Timing of the Declaration and Judicial Review of Overridden Statutes
Governments have invoked section 33 both before legislation is enacted and after legislation has been found by a court to be invalid.
The Court of Appeal in the Bill 21 case states, “Of course, s. 33 can be used by the legislature after a court has ruled and pointed out a statute’s constitutional flaws, but it can also be used preventively, in which case it cuts short the discussion: the legislature has the last word from the outset” (CA decision, para. 356). In short, the Court of Appeal suggests, section 33 acts as a “constitutional privative clause” (CA decision, para. 358).
An example of the government’s responding to a judicial decision is the Ontario government’s legislation to change campaign financing laws; when it was struck down as contravening section 2(b) of the Charter, government reenacted it during the same legislative session with section 33 included (a challenge to that version of the statute on the basis of section 3 failed at the Superior Court of Justice) (Working Families Ontario v. Ontario (ONSC); Working Families Coalition (Canada) Inc. v. Ontario (ONSC). The Ontario Court of Appeal held that the provisions did constitute a contravention of section 3 of the Charter. However, it was also asked to review the ONSC’s decision on section 33, which it had found properly invoked (Working Families CA, para. 55-57). It rejected the submission that since the Charter jurisprudence had evolved since Ford, it was time to reconsider section 33.
Bill 21 itself illustrates when the government’s invoking section 33 peremptorily. Although both the Superior Court and Court of Appeal both pointed out the serious impact of the legislation on those it targeted, they acknowledged the government could invoke section 33 when it wished. Blanchard JCS did observe, though, “Some may think that the use made in the case under consideration by the Quebec legislator trivializes it, all the more so since the exemption occurs before any judicial debate on the constitutional validity of the provisions of Bill 21.” (Trial decision, para. 754)
On the one hand, as already stated, section 33 can be viewed as an exception to the Charter’s entire scheme of protection of rights and shift to constitutional supremacy. It might be argued that having a judicial determination of whether legislation contravenes the Charter before employing the heavy weapon of section 33 to insulate rights is more consistent with the Charter’s regime. The courts may determine that the legislation is constitutional (as has been the case) or the government may decide it can amend it to meet the findings of the court: in other words, governments may decide they do not need to use section 33. This is more consistent with the so-called “dialogue” paradigm than a unilateral overriding of rights.
Furthermore, remembering why section 33 exists suggests that the section 33 power is meant to be a counterweight to judicial decisions that are contrary to the public interest. It might, therefore, be helpful to find out whether a decision is contrary to the public interest before denying rights without justification.
On the other hand, this process could employ considerable judicial resources and time. Although it would give the government “the last word”, it nevertheless seems to undermine to some extent the authority that the constitution has granted governments.
The Court of Appeal in its Bill 21 judgement noted that when the legislature decides to invoke section 33, including as a “preventive measure”, it not only affects the statute but limits judicial review of whether the statute is constitutional (CA decision, para. 315).
As the Quebec courts asserted in the Bill 21 decisions, the strongest argument against a full analysis of the legislation and whether it contravenes the Charter is that the matter is moot; any finding by the court would have no practical effect. The court would be doing indirectly what it cannot do directly, effectively assessing whether the use of section 33 is appropriate.
- The Relationships Between Sections 1 and 33, Between Sections 24(1) and 33 and Between Sections 28 and 33
In its Bill 21 decision, the Quebec Court of Appeal addressed whether the use of section 33 is subject to review under section 1 of the Charter. The argument here is that since the override “’entails a violation of fundamental rights and freedoms, it must be subject to the R. v. Oakes test’” (CA decision, para. 265, quoting a submission).
The Court of Appeal rejects this position for several reasons. First, in Oakes, Dickson CJ distinguished between section 1 and section 33 but treated them both as providing “justificatory criteria” by which to measure limitations on rights (CA decision, para. 267). Although Oakes preceded Ford, one can assume, as does the Quebec Court of Appeal, that the SCC was aware of it. Furthermore, to determine whether an invocation of section 33 is justifiable would require a full analysis of whether there is an infringement and whether it is justified. That would eviscerate section 33. (CA decision, para. 272)
As the Court of Appeal phrases it, the operation of section 33 “protects” the legislation “from [the] application” of the guarantees under the Charter and “places” the statute “outside their reach”. Put another way, “’Through the use of this override power, the Parliament or Legislature is enabled to enact a statute that unjustifiably infringes one or more of the rights or freedoms guaranteed by s. 2 or ss. 7 to 15’”. And since the invocation of section 33 means that the rights overridden no longer apply, the legislature does not have to show its “suspension” of those rights is reasonable or demonstrably justified under section 1 of the Charter. (CA decision, para. 317, citation omitted).
The SCC did not address this issue in Ford, but should it be faced with it in the Bill 21 case, there is no doubt that its answer to this question would be “no”.
The Quebec Court of Appeal also rejected the argument that section 24(1) of the Charter provides a way to invoke judicial review. Section 33 means that the statutory provisions no longer have effect and therefore there is nothing that section 24(1) is linked to to provide a remedy. Section 24(1) does not have autonomous standing. Otherwise, section 24(1), one part of the constitution, would abrogate section 33, another part of the constitution. (CA decision, para. 362) This is surely correct.
Somewhat more challenging to determine is the relationship between section 33 and section 28, which reinforces the guarantee of sex equality: “Notwithstanding anything in this Charter</em>, the rights and freedoms referred to in it are guaranteed equally to male and female persons” (emphasis added).
Section 28 is not a freestanding right but an interpretive provision that attaches to the rights and freedoms guaranteed by the Charter. It sits among other interpretive provisions: sections 25 (re aboriginal rights), 26 (other rights), 27 (multicultural preservation and enhancement) and 29 (denominational schools). These provisions state in different ways that the application or interpretation of Charter rights and freedoms is not to derogate from the interests protected by these provisions. None of them confers a substantive right to form the basis of a claim. However, the Quebec Court of Appeal notes, they are subject to section 28 (CA decision, para. 456).
The Court of Appeal’s lengthy discussion of this issue, referring to jurisprudence and academic commentary (and Hansard) makes it clear that the whole matter is ambiguous and can be legitimately argued to make section 33 subject to section 28 or to make section 28 moot in relation to provisions that have been overridden by section 33.
It can be argued that section 33 cannot be applied in a way that results in inequality for male and female persons with respect to the provisions it overrides: overriding section 15 cannot result in female inequality. For example, Bill 21 appears to have a disproportionately negative impact on Muslim women; accordingly, this result (if true) means section 33 cannot be applied to section 15.
This gives sex equality a heightened degree of protection compared to other grounds under section 15. Section 28 was included in the Charter to ensure the restrictive interpretation under the Bill of Rights would not be imported into the Charter (see, for example, Bliss, in which the SCC held that lesser unemployment benefits for pregnant women were not discriminatory because the difference between men and women was the result of nature: Bliss, p.190). (Section 15’s reference to different types of equality stems from the same concern.) As the Court of Appeal noted, the form of equality under section 15 is substantive, not formal, equality, the latter of which had resulted in the truncated understanding of sex equality previously (CA decision, para. 438).
As did Blanchard JCS, the Court of Appeal did not accept that section 33 is subject to section 28, primarily because section 33 does not grant a right or freedom. The opening words of section 28 do not assist, either (“notwithstanding anything in this Charter” [emphasis added]), since the invocation of section 33 means there are no rights remaining. Both men and women have been deprived of their right to equality or freedom of religion through section 33 or at least their right to make a claim based on those rights. (CA decision, para. 479)
One might argue, in contrast, that section 28 should be applied to section 33 before the latter is applied. Section 33 does not, after all, apply to section 28 and section 28 applies “notwithstanding anything in this Charter” (emphasis added). However, section 28 does not apply to section 1, since sex inequality can be justified under section 1 (it is no doubt too late to suggest section 28 might affect the analysis under section 1). (The Court of Appeal discusses the relevant jurisprudence at paragraphs 468 to 470.)
Should it decide to consider this issue, the SCC is likely to conclude the reason section 28 cannot apply to section 33 is that it would interfere with the fact section 33 requires no justification and is ”subject only to fairly light formal requirements”, in the Quebec Court of Appeal’s words. To apply section 28 to section 33 would require an analysis of whether the legislation does disadvantage women more than men.
This is one issue the SCC might decide to settle this matter “once and for all”, since it is outstanding and formed part of the debate around Bill 21.
CONCLUSION
There is no gainsaying that section 33 applies to some of the most important sections of the Charter, indeed, in some cases to rights and freedoms that had previously been recognized in common law. Although five years may seem a relatively short time – indeed it is in some respects – it is long enough to reconfigure the rights enjoyed by those protected by the Charter’s guarantees, including rights benefitting the most vulnerable. The Charter’s purpose is to protect minority rights from majority repression; section 33 accomplishes the opposite, at least in the context of the affected legislation. Governments can pass legislation with the express purpose of denying rights and then insulate it through the use of section 33, which the Quebec government accomplished with Bill 21, affecting livelihoods and social acceptance in the process.
Section 33 preserves for governments the right to impose its view of how the Charter should be interpreted or to advance its own agenda without the intervention by the courts, without caring what would be required by the Charter. For the Supreme Court of Canada to impose a more stringent standard on the government’s invocation of section 33 would be more than oversight, it would be a direct interference in what section 33 promises governments in the broader sense. It is true that governments always have the opportunity to defend their legislation under section 1 of the Charter should courts find legislation constitutionally invalid, but it still remains to courts to decide whether that justification passes muster.
Section 33 is different: it, in effect, belongs to governments. Governments’ use of section 33 has the potential to seriously upend Charter guarantees without much recourse. Even so, it is unlikely that the Supreme Court will “impose” greater demands on government than it already has in Ford. The problem lies in the inclusion of section 33 in the Charter in the first place, although again, it was the price to pay for the constitutionalizing of rights. This is so despite its increasing use. It will be up to the voters to decide about the use of section 33, including whether it should have been invoked in a particular case. One would have to be sanguine, however, to believe that this is likely to be an effective remedy, except perhaps in the most egregious cases. And even then, unless the public pressure persuades government to back off at the outset, section 33 may be in place for up to five years (or longer).
Although the Court of Appeal in the Bill 21 case concluded that section 33 is absolute and shields rights and guarantees from review, it nevertheless commented that this “is cause for reflection, if not discomfort” (CA decision, para. 407). Given the role of courts in a democratic society, “when the legislature invokes s. 33 of the Canadian Charter, it does not deprive the courts, but rather the general population, of the right to challenge the statute, a right that is fundamental in a democracy.” (CA decision, para. 409)
The Court of Appeal notes the criticism of section 33, that it makes the Charter an
instrument[] that give[s] with one hand and take[s] away with the other, claiming to protect rights and freedoms described as fundamental, while allowing legislatures, acting at the whim of the ideologies of the day, to capriciously override those rights and freedoms, subjecting each individual to the arbitrary will of the majority, wiping out the protection of minorities, despite such protection being one of the “key considerations” for the enactment of the charters. (CA decision, para. 410)
Should the SCC decide to reopen the analysis of section 33, it will have to consider whether this inducement to provinces to agree to the constitutionalizing of rights and freedoms has the potential for abuse in the hands of governments that no longer appreciate the terms on which it was included in the Charter. In other words, they will have to confront the risk that section 33, the means by which the Charter exists at all, may become the instrument by which it and the rights and freedoms it protects will be undermined. And suppose they conclude it does? It would be a momentous decision for the Supreme Court of Canada to interfere in how governments can exercise the power that section 33 so clearly gives them, particularly in a case in which cultural autonomy is at the forefront.
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